Defending free speech

When he spoke to the Institute of Public Affairs in August 2012, Tony Abbott was in a blue tie and fine form. He was there to deliver an address on freedom of speech. He had put his ''heart and soul'' into it, he said.

''There is really no more important issue, because this is a foundational issue for a democratic polity such as ours,'' the then-opposition leader told his audience, which included his colleagues Philip Ruddock and George Brandis.

At the time Abbott spoke, the Gillard government was planning broad-ranging media reforms which would, among other things, have created the Orwellian position of a Public Interest Media Advocate, an individual empowered to deregister bodies like the Australian Press Council if they failed to police newspapers and other media to the requisite standard.

Of all the dunder-headed policies advanced by the former government, it was the most dunderific. Prime minister Julia Gillard and her communications minister Stephen Conroy failed to make the case for it among the public. Media companies hated it, and, predictably enough, used their ready-built pulpits to criticise the reforms. Gillard leaked yet more caucus support over it. The cross-benchers wouldn't support the legislation and in March last year it was dumped.

Like a family fight at Christmas lunch, the whole episode was never mentioned again.

Abbott, in his IPA speech the year before, was at the forefront of objections.

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''Australia does not need more regulation of the mainstream media,'' he said. ''It is not, repeat not, the role of government to manage the day-to-day practices of journalism. The job of government is to foster free speech, not stifle it.''

Perhaps Abbott has never received enough credit for that speech. The Prime Minister's defence of freedom of expression is genuine, a principle he is willing to cop criticism over - notably this week, when many called on him to denounce Cory Bernardi's predictably idiotic theories on the carefree abortion habits of Australian women (and the sad likelihood that children raised by single parents will grow up to be tarts/criminals).

Abbott believes that Bernardi should be able to say whatever he likes. That doesn't equate to him endorsing the senator's silly views. (On a cynical view, it is in the Prime Minister's interests for Bernardi to come out of his cage from time to time. The more the South Australian senator airs his extreme views, the more likely it is that Abbott will be seen as a sensible conservative by comparison).

But that 2012 IPA speech was also the forum in which Abbott announced he would, if elected to government, repeal section 18C of the Racial Discrimination Act ''in its current form''.

Section 18C is called the ''Andrew Bolt law'' because the controversial News Ltd columnist was found to have breached it in 2011 over an article he wrote on light-skinned Aborigines. The court decision outraged conservatives and libertarians.

The section makes it unlawful for a person to do or say something which is ''reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate'' a person or group because of their ethnicity or race.

What is often not reported in discussions of the controversial section, are the details of the following section, 18D, which provides exemptions (or ''defences'') for anyone making offensive statements in the name of art, public, academic and scientific discussion.

You are also exempt if you make your offensive statement in the course of a fair report or a fair comment, as long as the statement is made reasonably and in good faith. In practice, pretty much anything that is said or done reasonably and in good faith is fine. It is a complete defence.

Newly appointed Freedom Commissioner Tim Wilson wants the entire section excised, and many of the media reports talk about a wholesale ''repeal''.

But Abbott and his Attorney-General George Brandis seem to only seriously object to the first two parts of the section - acts which are likely to ''offend or insult''. Abbott hates the idea of ''hurt feelings'', as he puts it, being a grounds on which free speech is curtailed.

Defenders of the section argue that is a gross distortion. Making offensive statements about race is categorically different to offending someone over (for example) their religion, they say. Skin colour is not a matter of belief or choice. If you offend or insult a black person for being black, you are attacking their dignity as a human, not their choices or beliefs (which, in a free society, are up for genuine discussion, even if that discussion is offensive).

Brandis has been very careful with his language. He has never said he wants to repeal the whole section. During a November estimates hearing of the Legal and Constitutional Affairs Legislation Committee, he corrected Labor senator Lisa Singh when she referred only to the ''repeal'' of 18C, and not the ''repeal or amendment''.

This gives the Attorney wriggle-room to accommodate the concerns of the coalition of Aboriginal, Chinese, Greek, Armenian, Jewish, Arab, Lebanese and Muslim community leaders who have grave concerns about getting rid of protections against race-hate speech.

The group, which includes the head of the Executive Council of Australian Jewry, Peter Wertheim, and Patrick Voon, the head of Chinese Australian Forum, went to Canberra last month, where they met the Attorney-General to voice their displeasure. They also lobbied other politicians including Malcolm Turnbull, Arthur Sinodinos and Ruddock.

The group met on Thursday afternoon to draft a statement of their objections to Brandis' plans, which they will detail to him when they meet him again in the next few weeks. They want the law unchanged. The Attorney-General appears hell-bent on removing the ''offend and insult'' parts to the section.

One possible outcome would be to amend the section but insert an ''incitement to racial hatred'' provision into the Commonwealth criminal code, which runs the risk of greatly displeasing the Andrew Bolts and Alan Joneses who so hate 18C. But the ethnic lobby groups would consider it disastrous if the civil provisions were knocked out entirely and replaced with criminal provisions.

The other wildcard is the Senate. Labor and the Greens will not support any changes to 18C, which means the government will have to wait until the Senate changeover on July 1 to push through their free speech changes.

Who knows what the position of the Palmer United Party is on racial vilification versus freedom of speech? Let alone the views of the Australian Motoring Enthusiast Party, the Australian Sports Party and the Liberal Democratic Party.

It's one thing to give a speech to a bunch of like-minded libertarians, it's another to negotiate reform with lobby groups and the herd of cats that is the incoming Senate. The result could be surprising.